NZ must protect judicial independence

New Zealand is a long way—both in conduct and geographically—from troubled legal systems such as Albania’s or Turkey’s, but we should still be vigilant about protecting the independence of our judiciary, warns Sir Geoffrey Vos, Chancellor of the High Court of England and Wales.

2 November 2017

“A fair and impartial [judicial] decision-making process in which citizens from all parts of society and the state itself have absolute confidence” is imperative to a democracy, said Sir Geoffrey in a public lecture at Victoria University of Wellington’s Faculty of Law.

What he had to say might sound “totally obvious here in New Zealand, as it does perhaps in England”, he told an audience that included senior members of the country’s legal profession.

“The problem, however, only arises when things are not working properly. And that’s why a study starting from first principles is useful. Because we live in rapidly changing societies. We live in rapidly changing political times. And as we shall see in a moment even basic principles cannot always be taken for granted, even in those countries where you would have thought they could be.

“Almost all justice systems face new challenges that demand new responses. And many of them, just as an aside, are caused by the changing political face of the world. We have a changing political face in the United States, we have it across Europe with the election of right-wing regimes, and we have it in almost every country.”

Introducing the lecture, Victoria’s Pro Vice-Chancellor and Dean of Law Professor Mark Hickford said Sir Geoffrey’s topic of The Limits of and Threats to Judicial Independence was one that resonated with “the very important and valuable speech” given by Chief Justice of New Zealand Dame Sian Elias to the Criminal Bar Association conference in August.

In her speech, Dame Sian spoke of “the erosion of the culture of courts” within the Ministry of Justice and there being “little agreement where judicial administration takes over and Ministry administration leaves off”.

She said: “In addition to policies designed to achieve ends that may be difficult to reconcile with the values to date accepted in criminal justice, it is necessary to acknowledge the impact on the system by the running down of resources available for criminal justice. If simply part of a cross-government belt tightening, it may be that such pressures arise out of a failure to appreciate the rule of law concerns recently raised by the United Kingdom Supreme Court in the treatment of the administration of justice as merely a public service like any other.”

Sir Geoffrey’s lecture drew on the results of a 2016-2017 survey of nearly 12,000 judges in 25 European countries, undertaken by the European Network of Councils for the Judiciary (ENCJ), of which he is a former President.

Among the questions the survey asked was whether during the previous two years judges had been under inappropriate pressure to take a particular decision in a case or part of a case.

“In three countries, more than 20 percent agreed or were not sure: Albania, Lithuania and Latvia. So you’re all going to say, ‘Well, so what, we knew that already.’ But of greater concern are the 11 countries where between 10 and 20 percent of judges either agreed or were not sure […] Which were those countries? Well, they included France, Italy, Poland, Spain and Sweden,” said Sir Geoffrey.

“One might think that if a judge is not sure that would be quite a problem in an area of this kind,” he noted.

Asked if they believed that in the previous two years any judges had accepted bribes, in 17 countries more than 20 percent of respondents agreed or were not sure, including in France, Italy, Portugal and Spain.

“Even Belgium was on 17 percent and Austria and Germany 10 percent. The only countries where there was a nil return — where England as usual scored ‘nil points’ — was Denmark, Finland, Ireland, Netherlands, Sweden and the UK.”

Respondents were also asked if they thought any judges’ decisions had been affected by actual or anticipated media coverage. In 13 countries — including France, Italy and Spain — more than 30 percent of judges thought they had.

Another issue highlighted in the survey was how in many countries judges no longer believed their independence was respected by their government.

In the UK, 43 percent of judges thought this.

“Now it’s a difficult question,” said Sir Geoffrey, “because there could be a multitude of reasons why a judge would answer yes to that question and the answers in the UK are likely to be connected with pay and pensions whereas if the same level of judges had answered that question in Romania it’s probably to do with something quite different indeed. But nonetheless the figure of 43 percent is rather striking.”

Sir Geoffrey added that in a separate survey of judicial attitudes in England and Wales, in which “99 percent” of salaried judges took part, “98 percent said they do not feel valued by the government, and that is a horrifying figure”.

Although the survey results come from Europe, he said, “they produce a picture from which we can all learn”.

According to the ENCJ, the marks of a strong, independent judiciary include timeliness, high standards and well-reasoned decisions, as well as transparency and accountability to ensure the confidence and trust of both the state and its citizens.

“Accountability is the quid pro quo for independence,” said Sir Geoffrey.

Although justice systems could not stand still, or stand apart from economic austerity, he said, judges should be closely involved in modernisation and have a meaningful voice in how money is spent.

High standards would not be achieved “without adequate and objectively determined court budgets”.

It was, however, essential for judges to be willing to contribute to these processes.

Sir Geoffrey outlined challenges to judicial independence identified by the ENCJ: in addition to insufficient investment in courts and judicial structures, these included increases in case complexity and workload, gratuitous criticism of judicial decisions by politicians, and inadequate staffing and administrative assistance for judges.

A new area of concern was the pressure that judges face from social media.

Risks to accountability included corruption, the absence of press offices to explain judicial decisions to the public and media, and “the failure of judges to reflect changes in civil society and their being frankly out of touch with ordinary citizens. How many times do we hear that criticism? But it is sadly, in many countries, very true”.

Judicial accountability is a function of public understanding, said Sir Geoffrey, endorsing the ENCJ view that “the more interest that citizens show in the operation of their justice system, the more likely it is to be truly accountable”.

Judicial independence will never be an “absolute concept”, he said; it is more of an aspiration.

“No judiciary, whatever we say, is completely independent of its government. The justice system has to be financed by the government. Judicial leadership must in practice cooperate with government if the justice system is to operate properly alongside other state structures to deliver an efficient and high quality justice service.”

He added: “Judges can and should be functionally and practically free from influence from the executive and the legislature but they can’t be so independent that they can, for example, feel free to take one, two, three or five years to deliver a decision, or feel free to decide one case a year. As has happened by the way. It’s not fanciful.”

Mutual respect is necessary, said Sir Geoffrey.

“There is no more important task for government than protection of the independence of judges. If public confidence in the justice system collapses then every other democratic protection for citizens does too.”

Sir Geoffrey was in New Zealand as the University of Canterbury’s 2017 Sir Eric Hotung Visiting Fellow.